2003-004ORDINANCE NO. 2003-
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A THIRD AMENDED CONTRACT FOR PROFESSIONAL
LEGAL SERVICES WITH THE LAW FIRM OF DICKSTEIN, SHAPIRO, MORIN &
OSH1NSKY, L.L.P. FOR SERVICES PERTAINING TO CONTINUED PARTIAL ELECTRIC
GENERATION DIVESTITURE ISSUES; AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFOR; PROVIDING FOR RETROACTIVE APPROVAL OF THE AGREEMENT; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems it necessary and appropriate and in the public
interest to continue to engage the law firm of Dickstein, Shapiro, Morin & Oshinsky, L.L.P.
("DSMO"), of Washington, D.C., to provide professional legal services incident to, pertaiffmg to,
and directly related to issues following the continued Denton Municipal Electric partial
generation divestiture; and
WHEREAS, the City has previously reta'med the professional legal services of DSMO on
this matter on April 6, 1999, and had operated under a Contract For Professional Legal Services,
in the amount of $450,000 thereafter, until all the funds provided for therein were expended; and
WHEREAS, the City has also previously reta'med the professional legal services of
DSMO on February 20, 2001, and has operated under a First Amendment to Contract for
Professional Legal Services in the additional amount of $300,000 thereafter, for further legal
advice regard'rog the partial electric divestiture transaction, until all the funds were expended;
and
WHEREAS, the City has further previously reta'med the professional legal services of
DSMO on July 16, 2002, as provided by Ordinance No. 2002-221 because of the need to
complete certain final legal activities regarding the consummation of the sale and certain follow-
up activities that were necessary to be performed regarding the hydroelectric facilities, and that
the Second Amended Contract for Professional Legal Services was thereby entered into,
finalizing the electric generation divestiture, in the further amount of $91,058.40, totaling
$841,058.40; which amount is currently near exhaustion; and
WHEREAS, in the month of November, 2002, PG&E unexpectedly provided the City
with notice of its intention to transfer all of its interest in the Transition Power Agreement by and
between itself and the City to a third party by the close of December 2002; and later, on
December 2, 2002, provided the City with further written notice that it also desired to sell the
Spencer Generation Plant and related hydroelectric facilities to a third party; City staff'has had to
react immediately to these notices and the law firm of Dickstein, Shapiro, Morin & Oshinsky, of
Washington, D.C. has begun work, immediately, as the. City has requested, and represented its
interests with regard to the PG&E-related transactions; and
WHEREAS, the scope of work for this transaction was not planned or provided for in the
three prior professional service contracts entered into between the City and DSMO, such
additional work is estimated to be in the mount of $60,000 additional, totaling $901,058.40; and
WHEREAS, the City staffhas reported to the City Council that there is a substantial need
for the hereinabove described professional services by Denton Municipal Electric, and that
limited City staff cannot adequately perform the highly specialized legal services and tasks, with
its own personnel; and
WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional
Services Procurement Act," generally provides that a city may not select a provider of
professional services on the basis of competitive bids, but must select the provider of
professional services on the basis of demonstrated competence, knowledge, and qualifications,
and for a fair and reasonable price; and the City Council hereby finds and concludes that DSMO
is appropriately qualified under the provisions of the law, to be continued as outside legal
counsel for the City, specifically Denton Municipal Electric, respecting this engagement; and
WHEREAS, the City Council has provided in the City budget for the appropriation of
funds to be used for the procurement of the foregoing professional legal services, as set forth in
this Third Amendment to Contract for Professional Legal Services; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1: That the City Manager is hereby authorized to execute a Third
Amendment to Contract for Professional Legal Services with the law firm of Dickstein, Shapiro,
Morin & Oshinsky, L.L.P., of Washington, D.C. for professional legal services relating to and
following up on the Denton Municipal Electric divestiture, in substantially the form of the Third
Amendment to Contract for Professional Legal Services attached hereto and incorporated
herewith by reference.
SECTION 2: That the award of this Third Amendment to Contract is on the basis of the
continued demonstrated competence and qualifications of DSMO, and the ability of DSMO, to
perform the professional legal services needed by the City for a fair and reasonable price
considering all the circumstances.
SECTION 3: That the expenditure of funds as provided for in the attached Third
Amendment to Contract for Professional Legal Services is hereby authorized.
SECTION 4 That as to the payment of fees and expenses, the Third Amendment to
Contract for Professional Legal Services is hereby ratified and retroactively approved, and shall
be effective from and after December 1, 2002.
SECTION 5: That except as provided in Section 4 hereinabove, this ordinance shall
become effective immediately upon its passage and approval.
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PASSED AND APPROVED this the
,2003.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
S:\Our Documents\Ordinances\02\DSMO Third Amended Contract- 2003 DME ord.doc
THE STATE OF TEXAS
COUNTY OF DENTON
THIRD AMENDMENT
TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES
THIS THIRD AMENDMENT to that certain Contract for Professional Legal
Services (hereafter the "Contract"), executed April 6, 1999; dated effective as of March
12, 1999, heretofore entered into by and between the City of Denton, Texas, a Texas
Municipal Corporation with its offices at 215 East McKinney Street, Denton, Texas
76201 (hereafter referred to as "CITY"); and the law finn of Dickstein, Shapiro, Morin &
Oshinsky, a Limited Liability Partnership, with its offices at 2101 L Street NW,
Washington, D.C. 20037 (hereafter referred to as "LEGAL ADVISOR"); acting herein
by and through their respective duly authorized signatories; and
WHEREAS, said Contract was further amended by that certain "First Amendment
to Contract for Professional Legal Services" (hereafter the "First Amended Contract"),
heretofore entered into by and between CITY and LEGAL ADVISOR, executed
February 20, 2001; dated effective as of January 1, 2001; and
WHEREAS, said Contract and the First Amended Contract, heretofore entered
into by and between CITY and LEGAL ADVISOR, executed July 16, 2002, as provided
by Ordinance No. 2002-221, was further amended by that Second Amendment to
Contract For Professional Legal Services ("Second Amended Contract"), dated effective
June 1, 2001; and
WHEREAS, said Contract, First Amended Contract, and Second Amended
Contract are hereby further amended by this Third Amendment to Contract For
Professional Legal Services ("Third Amended Contract"); to provide for further legal
services for the City of Denton, Texas.
NOW THEREFORE, the City of Denton, Texas and the firm of Dickstein,
Shapiro, Morin & Oshinsky (hereafter collectively referred to as the "PARTIES"), in
consideration of their further mutual promises and covenants, as well as for other good
and valuable considerations, do hereby AGREE to the following further amendments to
the terms and conditions of the Contract, the First Amended Contract, and the Second
Amended Contract, to wit:
That the provisions of Section ]II.C. of the Contract, the First Amended Contract,
and the Second Amended Contract shall instead read an additional SIXTY THOUSAND
and NO/100 DOLLARS ($60,000.00) effective December 1, 2002, as follows:
Legal Advisor and the City agree that charges for the legal services
contemplated under this Agreement, including all professional services
rendered by Legal Advisor and Subcontractor combined, and including
direct out-of-pocket expenses, shall not exceed NINE HUNDRED ONE
THOUSAND FIFTY EIGHT AND 40/100 DOLLARS ($901,058.40).
II.
The PARTIES agree, that except as specifically provided for by this Third
Amendment to Contract For Professional Legal Services, that all of the terms, covenants,
conditions, agreements, rights, responsibilities, and obligations of the parties set forth in
the Contract, shall remain in full force and effect.
IN WITNESS WHEREOF, the City of Denton, Texas and the firm of Dickstein,
Shapiro, Morin & Oshinsky, L.L.P. have executed this Third Amendment To Contract
For Professional Legal Services, in (4) original counterparts, by. jajad through their
respective duly authorized representatives and officers on this the ¢'L~/~ day of January,
2003; however, to be effective and ratified from and after December 1, 2002.
"CITY"
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
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"CONSULTANT"
DICKSTEIN, SHAPIRO, MORIN & OSHINSKY
A Limited Liability Partnership
ATTEST:
S:\Our Doc uments\Conttacts~02x, DSMO Third Amended Agrmt-Post-TA DME 2003.doc